West Coast Railway Company Ltd, R (on the application of) v Office of Rail and Road

Judicial review is not an appeal on the merits. Where Parliament entrusts a specialist safety regulator with technical assessments and case-by-case exemptions, the court affords substantial restraint and asks whether the decision was lawful, rational and proportionate.

An exemption from a statutory prohibition may be governed by a detailed policy, provided the regulator remains willing to consider exceptional cases. The applicant bears the evidential burden of demonstrating that alternative safety arrangements provide equivalent protection. Under Article 1 of the First Protocol, affordability may inform the impact on the operator, but safety requirements do not vary according to ability to pay. A refusal requiring central door locking was lawful where the operator had not demonstrated equivalent risk control and a transition period remained available.

West Coast Railway Company Ltd sought judicial review of two decisions by the Office of Rail and Road dated 31 January and 16 March 2023. The decisions refused an exemption under regulation 6 of the Railway Safety Regulations 1999 from regulation 5’s prohibition on operating rolling stock with hinged passenger doors without central door locking.

The claimant relied on alleged misinterpretation of the Regulations, unlawful fettering of discretion, failure to consider relevant matters, incompatibility with Article 1 of the First Protocol to the European Convention on Human Rights, and irrationality. The central issues were whether the ORR had lawfully applied its policy, whether the claimant had supplied sufficient evidence of equivalent safety, and whether refusal of the exemption was proportionate.

1. Claim dismissed. The ORR’s decisions were lawful, rational and compatible with Article 1 of the First Protocol.
2. Regulation 5 applies where rolling stock has hinged doors for passengers to use for boarding and alighting. The prohibition is not avoided because stewards, rather than passengers, open the doors. The ORR was entitled to regulate in response to evolving safety assessments and was not confined to the circumstances existing when the Regulations were made. Regulation 5 did not extend to droplight windows.
3. The ORR had not unlawfully fettered its discretion under regulation 6. A public authority may adopt a detailed policy, even one approaching a rule, provided it does not shut its ears to exceptional applications. The policy gave a strong steer towards central door locking but allowed consideration of exceptional circumstances and was not exhaustive. The decision letters showed that the ORR had considered the claimant’s operations and evidence.
4. The regulatory scheme placed the evidential burden on the applicant to demonstrate that its alternative arrangements could safely manage the operation and provide equivalent or better risk mitigation. The claimant had not supplied a suitable and sufficient risk assessment, quantified evidence of equivalence, or adequate evidence concerning staff training, monitoring and competence assessment. The ORR was entitled, within its specialist expertise, to prefer central door locking and to regard reliance on human action as a lower level of risk control.
5. The refusal interfered with the claimant’s possessions, was prescribed by law and pursued the legitimate aim of passenger safety. Applying the proportionality framework, the safety objective was sufficiently important and rationally connected to the measure. The ORR had considered the relevant safety and cost issues. Affordability could inform the impact on the claimant, but safety requirements could not vary according to the operator’s ability to pay. The availability of a phased transition, together with the unproved nature of the higher cost estimate, meant that a fair balance had been struck.
6. The alleged failure to consider relevant matters substantially amounted to a reasons challenge. The ORR’s primary reason was the claimant’s failure to provide the evidence required to assess the exemption. The decision was also not irrational or oppressive. Post-decision inspections and events were not considered necessary to resolve the claim.